What is a partition action in Missouri

Partition action introduction

Partition actions are legal remedies often sought by co-owners of real property who wish to terminate their joint ownership. When co-owners cannot agree on the management or disposition of the property, a partition action may be necessary. In Missouri, partition action attorneys play a crucial role in navigating the complexities of these legal proceedings. This article explores the role of partition action attorneys in Missouri, the legal framework governing partition actions, and how these attorneys assist clients in resolving property disputes.

What is a Partition Action?

A partition action is a legal process that allows co-owners of real property to divide or sell the property. This type of lawsuit is typically filed when co-owners disagree on how to manage or dispose of the property. Partition actions can result in either a physical division of the property (partition in kind) or a sale of the property with the proceeds divided among the co-owners (partition by sale).

Legal Framework Governing Partition Actions in Missouri

In Missouri, partition actions are governed by Chapter 528 of the Revised Statutes of Missouri (RSMo). These statutes provide the legal procedures and requirements for initiating and conducting a partition action. The key aspects of the legal framework include:

  1. Right to Partition: Any co-owner of real property in Missouri has the right to file a partition action. This right is not dependent on the size of the ownership interest.
  2. Filing a Partition Action: To initiate a partition action, a co-owner must file a petition in the circuit court of the county where the property is located. The petition should include a description of the property, the names and interests of all co-owners, and a request for partition.
  3. Appointment of Commissioners: Upon filing the petition, the court may appoint commissioners to evaluate the property and recommend whether a partition in kind or partition by sale is more appropriate.
  4. Partition in Kind vs. Partition by Sale: The court prefers a partition in kind, where the property is physically divided among the co-owners. However, if this is not feasible or would result in substantial prejudice to the co-owners, the court may order a partition by sale.
  5. Sale of Property: If the court orders a partition by sale, the property is typically sold at a public auction. The proceeds from the sale are then divided among the co-owners based on their respective ownership interests.

Role of Partition Action Attorneys

Partition action attorneys are specialized legal professionals who assist clients in navigating the complexities of partition actions. Their role includes:

  1. Legal Advice and Strategy: Partition action attorneys provide clients with legal advice on their rights and options. They help clients develop a strategy that aligns with their goals, whether it involves seeking a partition in kind or a partition by sale.
  2. Drafting and Filing Petitions: Attorneys assist clients in drafting and filing the partition petition with the appropriate court. They ensure that the petition complies with all legal requirements and accurately represents the client’s interests.
  3. Representation in Court: Partition action attorneys represent clients in court proceedings, presenting arguments and evidence to support their client’s position. They advocate for their client’s preferred method of partition and protect their client’s interests throughout the process.
  4. Negotiation and Mediation: In some cases, attorneys may help clients negotiate with co-owners to reach a settlement outside of court. They may also participate in mediation sessions to facilitate an amicable resolution.
  5. Managing Property Sales: If the court orders a partition by sale, attorneys assist in managing the sale process. This includes coordinating with real estate professionals, handling auction procedures, and ensuring that the sale proceeds are fairly distributed.

Benefits of Hiring a Partition Action Attorney

Hiring a partition action attorney offers several benefits, including:

  1. Expertise and Experience: Attorneys have specialized knowledge and experience in handling partition actions, which can be complex and involve intricate legal issues.
  2. Objective Advice: Attorneys provide objective advice, helping clients make informed decisions based on legal principles and the specifics of their case.
  3. Efficient Resolution: With an attorney’s guidance, clients can navigate the partition process more efficiently, potentially reducing the time and costs associated with resolving property disputes.
  4. Protection of Interests: Attorneys advocate for their client’s interests, ensuring that their rights are protected and that they receive a fair outcome.

Conclusion

Partition actions are essential legal tools for resolving disputes among co-owners of real property. In Missouri, partition action attorneys play a vital role in guiding clients through the legal process, providing expert advice, and advocating for their interests. By understanding the legal framework and the role of attorneys, co-owners can make informed decisions and effectively address property disputes. Whether seeking a partition in kind or a partition by sale, the expertise of a partition action attorney can be invaluable in achieving a fair and equitable resolution.

  • Missouri easement laws: Prescriptive, driveway, utility, property, land access & private roads.
    Learn from a Lawyer about Missouri easement laws: Prescriptive, driveway, utility, property, land access & private roads. Speak directly to an attorney.
    Learn from a Lawyer about Missouri easement laws: Prescriptive, driveway, utility, property, land access & private roads. Speak directly to an attorney.

     

    Learn from a Lawyer about Missouri easement laws: Prescriptive, driveway, utility, property, land access & private roads. Speak directly to an attorney.

    Easements in Missouri Easements in General

    • An easement is an interest in land owned by someone other than the owner of the property.
    • The land which is benefited by the easement is referred to as the dominant estate, while the land impressed with the easement is generally referred to as the servient estate.
    • Easements may be created by an express grant or by prescription or necessity. An easement grants the owner of the dominant estate the right to use the land for a particular purpose, and such use may be on, under or above the land.

    Generally, the duty to maintain an easement rests with the owner of the dominant estate.

    There are two general types of easements recognized in Missouri: (1) appurtenant easements and (2) easements in gross.

    Most easements are created by creating a conveyance in a legal document that is recorded with the recorder of deeds in the county where the property is located, commonly called an express grant of an easement. However, there are exceptions to the written easement, such as an easement of necessity, implied or visible easement, and easement by prescriptive use.

    Appurtenant Easements Recognized in Missouri

    An appurtenant easement, the most common type of easement and what most people think of when they use the term easement, is an easement meant to serve another particular piece of land. The property served by the easement is called the dominant estate. An appurtenant easement is said to run with the land.

    This means anyone who owns the dominant estate has the right to use the easement. When a parcel of real property that is a dominant estate is sold, the easement runs with the land and is still available to the new owner of the land for the same purpose.

    The property on which the easement is impressed, the servient estate, still owns the property outright. The servient estate is only restricted in what can be done with the portion of the land impressed by the easement.

    The owner of a servient estate is not allowed to interfere with an easement. For example, if there is an easement to use a road to cross a parcel of property, the owner of the servient estate cannot put a gate on the road, effectively preventing the dominant estates owner from using the easement. An owner can sell the servient estate at any time, but the new owner is still subject to the easement that exists on the subject property.

    Easements in Gross

    An easement in gross, another type of easement, is an easement that is associated with a person or people, not with the property itself. The easement is personal to the grantee of the easement. This means that any person holding an easement in gross can use the property according to the terms of the easement. It is essentially a personal right to use a piece of land for a particular limited purpose. Unless the easement provides otherwise, an easement in gross cannot be sold or passed down to any descendants of the easement holder. Case law regarding easements in gross is sparse, and a poorly drafted easement in gross can give rise to a dispute about whether there is an easement in gross or an irrevocable license. An example of an easement in gross would be if a person were to sell a piece of property that contains a pond where he or she likes to fish, and the seller negotiates with the buyer to retain an easement in gross that allows the seller to have access to the land only to fish in the pond.

    Creation of Appurtenant Easements

    There are multiple ways that an appurtenant easement is created. Common law provides three ways to establish an easement: (1) easements by necessity, (2) implied easements, and (3) prescriptive easements. There are other ways to create an easement in writing, not recognized under the common law. They include, but are not limited to: (1) formal grant, (2) reservation or exception in a deed of conveyance, (3) covenant creation by reference to a plat, and (4) recorded declaration of easements.

    Creation of Easement by Necessity

    A common law easement by necessity arises whenever land has been subdivided and subsequently sold, but such land is inaccessible except by passing over the remaining land of the grantor, the person who sold the property to the party who now desires an easement. To obtain a common law easement by necessity, the property owner desiring such an easement must show prior unity of title and subsequent deprivation of access to a public roadway. An easement by necessity will not arise from proof that the easement will be convenient. The foundation of the easement must be necessity and not convenience. If a property owner has a substitute way off the land, such owner is not entitled to an easement by necessity. This is true even if the substituted way is less suitable, is quite inconvenient or involves substantial cash outlay.

    Section 228.342 of the Revised Statutes of Missouri provides for the establishment or widening of a private road. That Missouri statute states in part that:

    A private road may be established or widened in favor of any owner or owners of real property for which there is no access, or insufficiently wide access, from such property to a public road if the private road sought to be established or widened is a way of strict necessity. As used in this section, the term ‘strict necessity? shall include the necessity to establish or widen a private road in order to utilize the property for the uses permitted by law.

    In order to prevail under Section 228.342, the parcel of real property must be landlocked and rendered useless without means for ingress or egress to the real property. In construing this statute, a property owner must prove that he or she owns the land, no public road goes through or alongside the land, and the private road the property owner is seeking is a way of strict necessity.

    In a 2012 case involving a statutory easement of necessity, Short v. Southern Union Co., a trial court did not allow the owner of a landlocked parcel of property to have a statutorily declared private road in order to access his property because he did not show that the land he owned could lawfully be used for his planned use. The appellate court overturned the trial courts decision, stating, The trial court  failed to recognize that even if strict necessity could be interpreted to require Short to establish lawful use for the property, the simple ability to physically access the property in its natural state is a lawful use. The appellate court also held that the the right to a way by necessity may lay dormant through several transfers of title yet pass with each transfer as appurtenant  and be exercised at any time by the holder of title thereto.

    In Westrich Farms, L.L.C. v. East Prairie Farm, L.L.C., a 2015 Missouri Court of Appeals case, the court rejected the argument that a farm was ?functionally landlocked? because the farmers equipment weighed more than the weight limit on the bridge leading to the farm, and thus denied the farmer a mile-long private road across an adjacent farm. The farmer had testified that his property was adjacent to a county road, but the court held that regardless of the condition of, or limitations on, that road, such was insufficient to take the purported necessity for such private road access across an adjacent farm out of the statutory parameters.

    Creation of Implied or Visible Easement

    It should be observed that the law does not favor the implication of easements, and courts are reluctant to infringe upon the rights normally incident to the absolute ownership of land. The doctrine of easement by implication from pre-existing use has been defined as follows: Where the owner of land has, by any artificial arrangement, effected an advantage for one parcel, to the burdening of the other, upon a severance of the ownership, the holders of the two parcels take those parcels respectively charged with the servitude and entitled benefit openly and visibly attached at the time of the conveyance of the parcel first sold.

    Therefore, to create an easement by implication from pre-existing use, there must be: (1) one owner who owns the entire tract and a subsequent subdividing of the tract where the then subdivided parcels are sold, (2) an obvious benefit to one of the parcels and burden to the other parcel existing at the time of sale, (3) use of the property by the common owner in the properties altered condition long enough before the parcels are sold and under such circumstances as to show that the change was intended to be permanent, and (4) reasonable necessity for the easement. Unlike easement of necessity, the benefit to the dominant tenement must be reasonably necessary to the use and enjoyment of the property, not strictly necessary.

    It is said that this rule of implied easements from pre-existing use upon severance of title is based upon public policy, which is favorable to the full utilization of land and the presumption that parties do not intend to render land unfit for occupancy.

    As a further basis, a presumption frequently invoked is that the parties contracted with a view of the condition of the property as it actually was at the time of the transaction and that after sale neither party has a right, without the consent of the other, to change to the detriment of the other, a condition which openly and visibly exists.

    The idea underlying the creation of such an easement is that the parties are presumed to have intended the grant of an easement by implication. Such a presumption can only be based on facts, and this requires a resort to the record evidence. This intention to create an easement by implication must clearly appear in the evidence.

    In Dohogne v. Counts, the court, after discussing the elements of implied easements at length, acknowledged that a gentlemen’s agreement for many years for sharing a driveway was sufficient to create such an easement by implication.

    Creation of Easement by Prescription

    To establish a prescriptive easement, it is necessary to show use that has been continuous, uninterrupted, visible and adverse for a period of 10 years. Some courts add the element of notice, though the basis for such is not entirely clear. (See: Homan v. Hutchison) When an easement is claimed by prescription, the character and extent of it is fixed and determined by the use under which it is gained.

    Continuity does not require any great quantum of actual use. A claimant who uses the prescriptive easement at his or her convenience, although infrequently, may still make out a claim for prescriptive easement. The 10-year period of prescription can be created by the tacking together of successive owners periods of continuous, uninterrupted, adverse use, each of which may be less than 10 years but with their total amounting to 10 years or more. To meet the visible element, the party seeking the easement must show that the servient tenement had notice of the use and that the use was visible. Notice may be either actual or constructive, or inferred from the facts. Finally, to be considered adverse, for purposes of establishing an easement by prescription, there must be nonrecognition of the owners authority to permit or prohibit use. This is because a permissive use of the land cannot ripen into an easement.

    Easements by prescription are sometimes confused with adverse possession claims. In a 2016 case, Daniels-Kerr v. Crosby, the court discusses the differences between an easement by prescription and adverse possession. In its decision, the court makes clear that although title by adverse possession need only be proven by a preponderance of the evidence, a prescriptive easement must be proven by clear and convincing evidence.

    Questions? Click here to speak directly with a Lawyer who knows Missouri Easement Law

  • Speak to an Attorney if a seller lied on a disclosure in Missouri by failure to disclose known adverse material facts.

     

    Click here to speak directly with a real estate attorney if a seller lied on disclosure in Missouri or Kansas.
    Click here to speak directly with a real estate attorney if a seller lied on disclosure in Missouri or Kansas.

    Can you sue a seller in Missouri if they lied on a disclosure?

    When you bought your home in Missouri, you assumed that it was in perfect condition, but what if a seller lied on the disclosure?

    After moving in, you soon realized that the situation was not so perfect. Perhaps when you tried to take a shower, you discovered that there was no hot water on the second floor. Or when you attempted to open the window in the living room, you noticed a massive break in the glass pane, previously unseen behind a decorative screen. Needless to say, the seller never mentioned these issues prior to the sale.

    Missouri’s nickname is “The Show Me State” but what exactly did the law require the seller to show, or tell, you? Was the seller obligated to inform you of these obvious problems on the disclosure, and if so, might you be able to recover any of the repair costs from him or her?

    Seller disclosure requirements in Missouri real estate

    Missouri’s legislature has placed certain disclosure obligations on sellers of residential real estate. However, the requirements are somewhat limited. Most states have legislation requiring home sellers to give an extensive written disclosure report to potential buyers. Such reports typically identify all material defects in the property, from a broken oven in the kitchen to a leak in the basement. While your Missouri seller did have to provide you with some information prior to the sale, the seller did not necessarily have to tell you about every single defect in the home?even if the defects were, by other states’ standards, “material” or significant.

    Missouri Rev. Stat. 442.606 requires that if the property is or was used as a site for methamphetamine production, the seller must disclose that in writing to the buyer. Methamphetamine is a dangerous and illegal stimulant drug sometimes manufactured in homes, often in basements or bathrooms, leading to major toxicity. Sellers would need to disclose this criminal history only if they had knowledge of such prior methamphetamine production which is not the same as a seller who lied on a disclosure due to lack of knowing.

    Similarly, the Missouri statute requires the home seller to disclose in writing whether the property was the site endangering the welfare of a child through physical injury. Again, the seller must only disclose incidents about which he or she is aware. These are highly specific disclosure requirements, but theoretically aim to prevent you from purchasing a home with a sordid criminal history.

    Beyond these specific requirements, Missouri courts will typically enforce caveat emptor clauses in purchase contracts. Under the doctrine of caveat emptor (let the buyer beware), judges ordinarily refuse to compensate buyers for home defects found after the purchase.

    This situation changes a bit, however, if the seller used a licensed real estate agent to help sell the home. Agents are held to certain standards of honesty under Missouri Rev. Stat. 339.730.1, which requires that an agent disclose to any [potential buyer] all adverse material facts actually known or that should have been known by the [agent].

    If the seller is a licensed real estate agent, they risk losing their license if they lie on a disclosure.

    In other words, licensed real estate agents cannot lie to buyers without risking their license. Whether the seller instructed the agent to lie to you about the condition of the home, or whether the agent decided to lie so as to expedite the sale, this conduct is prohibited. For example, imagine that the seller tells the agent that he needs to sell the home quickly because termites are quickly eating through the porch. Obviously, this would be the sort of adverse material fact? about which the agent would be legally obligated to inform the buyer. Or let’s say the agent, through his or her own experience, notices that the window frames show sign of moisture damage. Again, the agent should have spoken up.

    Even though the agent cannot explicitly lie, the agent still owes no duty to conduct an independent inspection or discover any adverse material facts for the benefit of the [buyer] and owes no duty to independently verify the accuracy or completeness of any statement made by the [seller] or any independent inspector. Thus, the seller’s agent does not need to verify his or her observation or knowledge of the property, or perform any sort of inspection. The agent simply cannot lie outright.

    Potential Remedies Against a Missouri Seller for Failure to Disclose Home Defects

    You may be thinking that Missouri’s requirements for disclosure sound fairly minimal, and you would be right. The seller is not required by statute to give you an extensive disclosure report outlining every known defect in the home. The agent is only required not to lie to you, and to tell you about any serious defects that he or she actually knows of?even though the agent has no obligation to conduct any sort of inspection to discover such defects.

    Nevertheless, Missouri law does provide you with some potential causes of action against a seller or agent who failed to inform you about costly defects.

    First, if you believe that the seller’s agent failed to reveal a defect about which he or she actually knew, you could report that individual to the Missouri Real Estate Commission (MREC). MREC is the state agency charged with licensing and overseeing agents. Even the threat that you might get MREC involved could cause the agent, or the larger real estate agency for which that specific agent works, to come to some sort of agreement with you before you make a formal complaint.

    Note, however, that it can be very difficult to prove that a real estate agent actually knew about a defect and purposely never told you; the defect would have to be very obvious (in which case questions would no doubt arise as to why you didn’t notice it yourself), or you would need to have some evidence that the seller told the agent to lie.

    You may also have causes of action directly against the seller for fraud or breach of contract. Fraud is a cause of action under Missouri law that arises where one party made a knowingly false statement in order to induce another party to take an action. Imagine that the seller told you that termites in the home had already been exterminated. You buy the home on the basis of that representation. However, you soon discover that it was a lie; there are still termites, and the seller had made no efforts to eradicate them. This is fraud.

    Similarly, you may have a breach of contract cause of action against the seller if the language of your purchase contract made certain guarantees. For example, your purchase contract might specifically state that the cracked windows would be replaced before the closing. If the seller failed to do this, then the seller has breached the contract. By definition, you did not get what you paid for when you bought the property. You would be entitled to monetary damages to cover the costs of upgrading the windows, which is precisely what you had bargained for.

    In short, Missouri offers only limited protections to buyers of residential real estate. However, if you believe that you have found some nasty undisclosed defects, you should consider meeting with a Missouri real estate attorney who can advise you on an effective strategy to recover your losses.

    Click here to speak directly with a real estate attorney if you think a seller lied on a disclosure.